Kavanaugh faces rough confirmation battle

Kavanaugh, Trump: The stakes are high.

AP

What happened

Senate Democrats this week launched what will be a fierce partisan battle to block the nomination of Brett Kavanaugh, the U.S. Court of Appeals judge selected by President Trump to succeed longtime swing vote Justice Anthony Kennedy on the U.S. Supreme Court. Majority Leader Mitch McConnell of Kentucky hailed Kavanaugh, a favorite of the Republican legal establishment and a former law clerk of Kennedy’s, as “one of the most thoughtful jurists” in the country, citing his “intellect, experience, and exemplary judicial temperament.” But Minority Leader Chuck Schumer (D-N.Y.) spoke for many Democrats in promising to “oppose Judge Kavanaugh’s nomination with everything I have,” adding, “the stakes are simply too high for anything less.” Kavanaugh’s views on abortion rights, access to health care, voting rights, and presidential immunity, informed by his experience working for independent counsel Ken Starr’s investigation of President Bill Clinton, will be a major issue throughout his Senate confirmation hearings.

After his experience in the Starr investigation and later working as a staff secretary to President George W. Bush, Kavanaugh wrote a law review article saying Congress should pass legislation that would prevent presidents from being distracted by civil litigation, criminal investigation, or possible prosecution while in office. He said he’d realized in working for Bush that investigations “take the president’s focus away from his or her responsibilities to the people,” and should be deferred until the president leaves office. Democrats seized on that article to charge that Trump selected Kavanaugh because he’s likely to rule in the president’s favor if Trump refuses to respond to a subpoena by special counsel Robert Mueller or shuts down the investigation. “Not only did Mr. Kavanaugh say that a president should not be subpoenaed, he said a president shouldn’t be investigated,” Schumer said.

Kavanaugh is seen as an “originalist” jurist in the mold of Justice Clarence Thomas and former Justice Antonin Scalia. In his rulings, Kavanaugh, an observant Catholic, has been a staunch defender of religious liberty, and has frequently challenged the Environmental Protection Agency over regulations imposed on industry. He notably dissented in a 2011 decision upholding Washington, D.C.’s ban on semiautomatic, assault-style rifles, arguing that the prohibition was unconstitutional. The GOP’s 51-49 majority makes Kavanaugh’s confirmation likely, particularly if red state Democrats feel political pressure to vote for him.

What the editorials said

In supporting Trump, the Republican Party made a deal with the devil—“the Supreme Court for your soul,” said the Chicago Sun-Times. Mainstream conservatives overlooked every “reprehensible thing” about Trump in hopes he’d fill court vacancies with justices like Scalia. By nominating a “tried-and-true conservative” like Kavanaugh after already putting Neil Gorsuch on the court, Trump has made good on his campaign promise. By replacing Kennedy’s unpredictable moderate views with doctrinaire conservatism, said The Washington Post, Kavanaugh “could drastically shift the court’s tenuous ideological balance.” But senators of both parties should press Kavanaugh to clarify his views on executive privilege, and “extract an ironclad commitment” that he “will act as a check on the president.”

What the Left most fears losing is the court “as its preferred legislature,” said The Wall Street Journal. But Kavanaugh has demonstrated “judicial modesty” by deferring to presidential authority “regardless of the White House occupant,” and “will help restore the Supreme Court to its proper, more modest role in American politics and society.”

What the columnists said

Literally any nominee would have been portrayed by the Left as a “science-fiction villain,” said Emily Jashinsky in the Washington Examiner. Before the nomination was even announced, the Women’s March prematurely sent out a boilerplate press release claiming “XX” would be a “death sentence for thousands of women,” inadvertently exposing modern feminism’s “hollow and reflexive” fearmongering.

“It’s hard to imagine” Kavanaugh’s “expansive view of presidential power” didn’t appeal to President Trump, said Caroline Frederickson and Norman Eisen in The New York Times. The nominee’s past writings suggest he agrees with Trump’s lawyers’ “bizarre argument” that a president cannot legally obstruct justice by shutting down an investigation over which he has authority. Trump wants to make the Mueller “witch hunt” go away, said Dahlia Lithwick in Slate.com, so he chose “the guy who had the most to say about imperial presidents.” Trump’s base of evangelicals wanted him to pick religious conservative Amy Coney Barrett, but he ignored them. That’s why his decision to select Kavanaugh “makes him look guilty.”

With “little wiggle room” in a narrowly divided Senate, the confirmation vote will come down to a few key players, said Josh Voorhees, also in Slate.com. Among them: pro-choice Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska; Sen. Rand Paul of Kentucky, a iconoclastic libertarian who has voiced concerns that Kavanaugh is “too deferential to the executive branch,” particularly in matters of surveillance; and red state Democrats such as Joe Manchin of West Virginia, Claire McCaskill of Missouri, and Doug Jones of Alabama. “Kavanaugh’s fate will rest” with these senators.

What next?

Still fuming over the stonewalling of Obama’s Supreme Court pick Merrick Garland, Democrats are itching for a fight, said Ronald Klain in The Washington Post. If Trump expects Kavanaugh to be confirmed as easily as Gorsuch, “he is sadly mistaken.” Democrats are demanding access to millions of pages of documents, notes and emails and other records that passed through Kavanaugh’s office while he worked for Starr and for the Bush White House. The overwhelming volume of records would likely delay the start of confirmation hearings until after Congress’ August recess, said Josh Gerstein in Politico.com. Tommy Vietor, a former spokesman for President Obama, said “there may be actual revelations” from Kavanaugh’s documents, and as public records, “Democrats and the media should demand that they be posted online.”